John C. Eastman takes to the San Francisco Chronicle to insist that because Walker is in a stable committed relationship, one that could lead to him and his partner getting married, and thus benefiting from the tax breaks legalized gay marriage would provide, he must stand down from the bench. Quoting federal law, Eastman notes, a judge must stand down if he “knows that the judge … has a financial … or any other interest that could be affected substantially by the outcome of the proceeding.”

If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” – he and his partner are now permitted to marry! – and that, according to Judge Walker’s own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.

If the relationship does not create such a conflict, it nevertheless creates the circumstance “in which the judge’s impartiality might reasonably be questioned.” That ground for disqualification can be waived by the parties, but the judge must “disclose on the record the basis of the disqualification” and then only continue after the parties have agreed in writing to his continued involvement. No such disclosure and agreement occurred in this case.

According to Eastman’s logic, this sets up a grounds to reverse his decision on appeal.

Judge Walker’s failure to disqualify himself or at least to disclose his potentially disqualifying relationship to the parties requires that the opinion in the case be vacated and a new trial conducted before a different judge. In Liljeberg vs. Health Services Acquisition Corp., the Supreme Court held that the original judgment had to be set aside even when the disqualifying relationship only became known to the parties 10 months after the judgment entered in the case had been upheld on appeal. Where an objective observer would have questioned the judge’s impartiality, recusal is required, and the appropriate remedy is to annul the judgment because of the risk of injustice to the parties and of undermining the public’s confidence in the judicial process.

This argument is foolish, and I say this not just because I wholeheartedly support Walker’s decision. While a judge’s possible financial benefits from the outcome of a case are valid reasons to preclude yourself (such as a judge not hearing a case involving a company in which she owns stock), the logic doesn’t apply here — particularly if you look at the very rationale defenders of Prop 8 made: That by legalizing same-sex marriage, opposite-sex marriages would somehow be damaged.

If we accept Eastman’s rationale, that means every heterosexual judge (or maybe only those in stable relationships?) would also have to recuse himself, because he stood to benefit financially from upholding Prop 8, since he would keep the tax benefits of straight marriage while forcing gays to continue funding government expenditures (and his tax breaks) without equally receiving the tax party favors.

Moreover, it is Walker’s status as “paired off” that Eastman zeroes in on. Except when did long-term stable relationships become a precursor to marriage? Two words: Las Vegas.

The enactment of any civil right almost certainly yields economic benefits to the class of people suddenly seeing a wrong turned right, because by definition civil rights seek to end discrimination. As such, Eastman would also have to argue that women, retroactively, shouldn’t have been able to vote on their right to vote because they stood to financially benefit from, uh, the right to vote. Also, female Supreme Court justices voting on abortion rights? Unfair, because if they uphold abortion they also “unfairly” uphold the right not to care for an unwanted child, which are expensive! Also, don’t let male Supreme Court justices vote on abortion either, because if they outlaw it they stand to benefit by taking tax breaks for additional dependents. And remember when blacks and whites were allowed to marry? Let’s not let any black (or white!) judges rule on that one, because guess what: They stood to benefit from their own rulings if they’ve got jungle fever.

Why not just flip a coin? Human involvement is just too prone to human error.

Get Queerty Daily

Subscribe to Queerty for a daily dose of #california #johnc.eastman #marriage stories and more

26 Comments

Sceth

Your articles have improved greatly!

August 12, 2010 at 6:08am

WalkderDC

Since the Supreme Court, Federal Courts etc… are supposed to be deciding cases on whats best for the country, then you could argue that every judge benefits from all of their own decisions.

The Supreme Court made a decision in Bush v. Gore. I never heard the conservatives at that point talking about how that was a benefit to the registered republicans on the court, funny the complaints only come when they don’t like the decision.

August 12, 2010 at 7:08am

Lanjier

If a heterosexual judge decided the case, how could the outcome have possible been different! What is the state interest in permitting voters to validate other people’s marriages, when their own marriage right are not implicated? Where is the science that may have made Walkers finding of fact different if decided by someone else? Where is the legal authority to support discrimination? This case really has only one outcome grounded in science, facts, law, reason and the American way.

August 12, 2010 at 8:08am

PLAYS WELL WITH OTHERS

When the tide is turinig in their favor the frightwing lunatics are such strident believers in the judicial system and how it works as “it should”. As soon as a ruling they disagree with suddenly the system sucks……….

Sorry asshats the entire judicial system is founded in the belief that any member of the judiciary is going to leave all personal beliefs, feelings, and leanings at the courthouse door and base their judgements only on the rule of law. If you follow their lunatic reasoning, then in matters in which a hetrosexual person or persons may benefit from the ruling, only a homosexual judge should sit and make judgement on such a case………

Classic example of be carefull for what you wish for……

August 12, 2010 at 9:08am

Jeffree

The only way to have judges with no “vested interest” in the outcomes of cases where they preside is to hire Canadian nationals who have obtained US law degrees !

Problem solved!

(idea copywrited by Jeffree 2010) ok not really

August 12, 2010 at 9:08am

Hear, hear

Damn. That was well-reasoned, thorough, non-absurd: excellent!

August 12, 2010 at 9:08am

PLAYS WELL WITH OTHERS

@Jeffree: J…think they would have problems with Canadian flavored Gheys also………. :p

August 12, 2010 at 9:08am

Jeffree

@Plays Well: Good point. Let’s make that proposal to only appoint judges who are “Canadian Asexuals.”

August 12, 2010 at 9:08am

pete

The judge could also say that the argument isn’t valid, since he and his long-term partner did not get married in CA when it was legal.

August 12, 2010 at 10:08am

Mike

I really hate the San Francisco Chronicle. It’s garbage.

August 12, 2010 at 12:08pm

Dave

Let’s avoid the “immutable characteristics” debate entirely (since the right wingers think gay = behaviour) and just say that nothing about a judge’s person—whether mutable or immutable—calls for her to recuse herself.

The only real grounds for recusal is a conflict of interest. That doesn’t mean that the judge possesses a trait that is implicated in the case; it means that the judge has some sort of former relationship to one of the parties—perhaps she worked for one, or represented one in court, or opposed one in court. That’s really about it. The problem is a relationship between a specific party and the individual judge, not any of that judge’s traits and any issues at hand.

I mean, think about it: what if an anti-smoking ordinance came before the SCOTUS? Smoking is a mutable characteristic. Would the smokers have to recuse themselves? How about the non-smokers? Both might have a vested interest in the outcome.

How about a real world example, like Bush v. Gore? Political affiliation is a mutable characteristic. Should the Republicans on the court have recused themselves? Should the Democrats? Congratulations, we have our first 0-0 Supreme Court ruling.

What this flawed argument really relies on is othering behaviour and the assumption of privilege. When we ask a black justice to recuse himself from a civil rights case, we’re ignoring the fact that white justices also have a race, and thus a stake in the outcome. And when we ask a gay judge to recuse himself, we’re ignoring the fact that straight judges also have a sexual orientation and a stake in the outcome.

Any time a case draws a distinction between two mutually exhaustive (or largely so) groups, *all* justices are going to belong to one group or the other. It’s ridiculous to expect them to recuse themselves in such a case.

Being a judge doesn’t mean having no potentially biasing characteristics because no such human beings exist. It means overcoming those biases and fairly and impartially ruling on the matter at hand.

If someone wants to argue that Walker ruled in a biased manner, that’s one thing—not one that will go very far, mind you. But to suggest he should have recused himself is ignorant of the law and of the nature of human beings.

August 12, 2010 at 12:08pm

B

No. 10 · Mike wrote, “I really hate the San Francisco Chronicle. It’s garbage.” … it has gone downhill significantly, for reasons that affect a lot of newspapers, but this particular article was an “Open Forum” one, not an editorial or article by a columnist.

BTW, check out who John C. Eastman is. He was formerly a law clerk for Clarence Thomas, and is “the founding director of the Center for Constitutional Jurisprudence.”

Gary B.

Do you think that people who are unhappy with the results of his decision would have pointed this out had he ruled the other way?

This sounds like the desperate argument of someone trying to hold back a tidal wave. National gay marriage is inevitable. Deal with it.

August 12, 2010 at 2:08pm

B

No. 9 · pete wrote, “The judge could also say that the argument isn’t valid, since he and his long-term partner did not get married in CA when it was legal.”

There was no evidence as to whether the judge has a long-term partner – Eastman merely insinuated that there was some sort of relationship based on the judge going to bar functions with the same person a number of times. They could just be friends for
all we know, and the judge did not announce details of his
private life.

If you take Eastman’s argument seriously, the only judge qualified to rule on marriage would be one who is completely asexual and who spends every evening at home playing solitary (although of course Eastman would have raised no objections if the judge was straight, whether married or not).

August 12, 2010 at 2:08pm

Michael

@WalkderDC: “…funny the complaints only come when they don’t like the decision.” Which, of course, is the reason behind all complaints.

August 12, 2010 at 9:08pm

youcanthandlethetruth

It’s ludicrous than an openly homosexual, unmarried man who has never been a father gets to rule on marriage, the dynamics of long-term male-female relationships and parenting.

How cruel, biased and unjust of him to accuse California voters of being “irrational” when they passed Prop 8. He continues to show disregard for the will of the people by nullifying their votes and pushing forward to allow same-sex marriage even before an appeal can be heard.

I wonder how the homosexual community would have reacted if this case was tried before a Federal Judge who was a practising Evangelical Minister?

August 12, 2010 at 10:08pm

Queer Supremacist

@youcanthandlethetruth: If Prop H8 was the will of the people, you just made the argument for martial law. We don’t get to vote on who can and can’t have rights.

I say we put Freedom of Religion up to a vote!

August 12, 2010 at 10:08pm

youcanthandlethetruth

Ryan

He can’t “go right ahead” because it’s unconstitutional, dumbass. Just like it’s unconstitutional to allow one group rights that it doesn’t allow another group. The constitution ortects minorities from majorities.

August 13, 2010 at 5:08am

Queer Supremacist

As for Freedom of Religion, that’s the only thing keeping you fucking heretics out of prison for war crimes against gays and anyone who doesn’t worship the same thieves and child molesters you “people” worship. You have every right to believe in fairy tales, just like gullible children have every right to believe that some fat slob breaks into their house every December 24 and leaves you free goodies in exchange for encrusted trans fats. But you have no right to oppress those of us who see through that bullshit and realize that the Christian god is really the Devil.

You breeders get a tacky little certificate and thousands of unfair special privileges for shacking up and farming babies using the collectivist argument that it’s “good for society.” Overpopulation is good for society? Look at the problems in China and India caused by uncontrolled hetero acts and then try to tell me that heterosexuality is so fucking wonderful.

The rights of consenting, unrelated individuals of the same sex will not be infringed any longer. And God help anyone who tries to get in our way. We have been nonviolent and considerate towards the likes of you long enough. We will win the war for gay rights. If you value your life, you’d better plan your surrender.

August 13, 2010 at 9:08am

Josh R

Brilliantly stated! Well Done!

August 13, 2010 at 2:08pm

youcanthandlethetruth

@Queer Supremacist: Homosexuals already have the right to marry just like normal people.

There is no right to homosexual marriage in the Constitution, no more than a right to polygamous or consanguineous marriage, which also involve consenting adults.

Oh wait I see you want to deny that “right” to related consenting adults – thanks for sending us the memo.

Allowing a homosexual Judge to rule on homosexual marriage is like asking Tony Hayward to rule on whether BP was responsible for the Gulf oil spill.

August 13, 2010 at 2:08pm

youcanthandlethetruth

@Queer Supremacist: You breeders get a tacky little certificate and thousands of unfair special privileges for shacking up and farming babies”

patrick

Randy King

Asking a same sex enthusiast if they made a choice in regards to their sexual preferences is a lot like asking an illegal immigrant if they should be given amnesty.

The APA and Walker have the nerve to call this science?

August 28, 2010 at 8:08pm

Greg randles

@Queer Supremist

“You breeders”

You mean, YOU can’t breed? And what’s all this about “planning our surrender?” What exactly have you been smoking? Or is all that fudge packing beginning to fry your brain?

As a matter of fact, you queers are dying a lot faster than us heteros. Want some facts to back that up? It is well established that there are high rates of psychiatric illnesses, including depression, drug abuse, and suicide attempts, among gays and lesbians. This is true even in the Netherlands, where gay, lesbian and bisexual (GLB) relationships are far more socially acceptable than even in the U.S. Depression and drug abuse are strongly associated with risky sexual practices that lead to serious medical problems.

Monogamy, meaning long-term sexual fidelity in case you don’t understand big words, is rare in GLB relationships, particularly among gay men. One study reported that 66 percent of gay couples reported sex outside the relationship within the first year, and nearly 90 percent if the relationship lasted five years. In more recent years, the U.S. Centers for Disease Control has reported an upswing in promiscuity, at least among young homosexual men in San Francisco. From 1994 to 1997, the percentage of homosexual men reporting multiple partners and unprotected anal sex rose from 23.6 percent to 33.3 percent, with the largest increase among men under 25.7 Despite its continuing incurability, AIDS no longer seems to deter individuals from engaging in promiscuity, particularly anal sex.

Anal sex is simply not normal by any standards, and that goes for “breeders” as well. The list of diseases found with extraordinary frequency among male homosexual practitioners as a result of anal intercourse is alarming:

Even going back to 1988, a CDC survey identified 21 percent of all Hepatitis B cases as being homosexually transmitted while 18 percent were heterosexually transmitted.28 Since homosexuals comprise such a small percent of the population (only 3 percent), they have a significantly higher rate of infection than heterosexuals. Anal intercourse also puts queers at significant risk for anal cancer. Anal cancer is the result of infection with some subtypes of human papilloma virus (HPV), which are known viral carcinogens. Data as far back again as 1989 showed the rates of anal cancer in male homosexual practitioners to be 10 times that of heterosexual males, and growing. Thus, the prevalence of anal cancer among gay men is of grave concern (litrally). For those with AIDS, the rates are doubled.

Other physical problems associated with anal intercourse are:

hemorrhoids
anal fissures
anorectal trauma
retained foreign bodies

Gay sex also accounts for the lion’s share of the increasing number of cases in America of sexually transmitted infections that are not generally spread through sexual contact. These diseases, with consequences that range from severe and even life-threatening to mere annoyances, include Hepatitis A,36 Giardia lamblia, Entamoeba histolytica,37 Epstein-Barr virus,38 Neisseria meningitides,39 Shigellosis, Salmonellosis, Pediculosis, scabies and Campylobacter. Is this all part of an ‘normal’ alternative lifestyle in your eyes?

The greater incidence of physical and mental health problems among gays and lesbians has serious consequences for length of life. While many are aware of the death toll from AIDS, there has been little public attention given to the magnitude of the lost years of life due to political correctness and the fear of being labelled of “homophobic.”

An epidemiological study from Vancouver, Canada of data tabulated between 1987 and 1992 for AIDS-related deaths reveals that male homosexual or bisexual practitioners lost up to 20 years of life expectancy. The study concluded that if 3 percent of the population studied were gay or bisexual, the probability of a 20-year-old gay or bisexual man living to 65 years was only 32 percent, compared to 78 percent for men in general. The damaging effects of cigarette smoking pale in comparison -cigarette smokers lose on average about 13.5 years of life expectancy, which doesn’t look good for gay smokers.

Let’s be honest here, it is clear that there are serious medical consequences to same-sex behavior. Identification with a GLBT community appears to lead to an increase in promiscuity, which in turn leads to a myriad of STD’s and even early death. A compassionate response to requests for social approval and recognition of GLBT relationships is not to assure gays and lesbians that homosexual relationships are just like heterosexual ones, but to point out the health risks of gay sex and promiscuity.

Even with the facts in hand, there are far too many GBLTs out there who simply do not care and will continue to indulge themselves in deviant, health-destroying activities regardless of the consequences.

Going on this sort of data, us “breeders’ will be around a lot longer than you and your bum buddies. Santa included.